Trademark Lawyer for Small Business

Yes. Common-law trademark rights arise from consistent commercial use of a name in connection with goods or services in a specific geographic area. These rights are real and enforceable, but they are limited to the territory where you have actually operated and sold under the name. They are also harder to prove in an enforcement action because you must produce use-history evidence each time. A federal trademark registration replaces that evidentiary burden with a documented legal presumption of ownership.

First use in commerce for a trademark application is documented through evidence that shows the name was used in connection with a commercial transaction on a specific date. For goods, examples include dated product labels, packaging, invoices, or receipts. For services, examples include dated advertising materials, website screenshots, service agreements, or invoices that show the name was used in connection with services sold to customers. The application states the first-use date, but in a TTAB proceeding a date of use alleged in an application is not evidence on its own and must be established by competent evidence (37 C.F.R. § 2.122(b)(2)).

The first step is documenting what you have found: screenshots, business listings, website URLs, and any advertising material that shows the other business using the name. After that, a trademark lawyer assesses the situation: how similar the names are, how related the businesses are, who has the earlier rights, and what the realistic enforcement options are. Acting before assessing your position can backfire if the other business has a registration or a priority date that complicates your claim.

A cease-and-desist about a name you have used for years puts your priority position at issue. The first question is whether the sender has earlier rights than you do: an earlier filing date or an earlier first-use date in the relevant market. If your use began before their filing date and you have not abandoned the name, their registration's filing-date priority does not apply against you (15 U.S.C. § 1057(c)), and in an infringement dispute over a registration that has become incontestable under 15 U.S.C. § 1065, the Lanham Act's prior-use defense applies only if you adopted the name without knowledge of the registrant's prior use and you, or those in privity with you, have used it continuously from a date before the applicable statutory date (the registrant's constructive-use date under 15 U.S.C. § 1057(c); its registration date, if its application was filed before the Trademark Law Revision Act of 1988 took effect; or the date its registered mark was published under 15 U.S.C. § 1062(c)), and only in the area where that continuous prior use is proved (15 U.S.C. § 1115(b)(5)); a registration that has not become incontestable does not preclude you from proving any legal or equitable defense or defect that could have been asserted if the mark had not been registered (15 U.S.C. § 1115(a)). A trademark lawyer reviews the facts and advises on the response strategy before you reply.

If an application registers on the Principal Register, its filing date counts as nationwide constructive use of the mark for the registered goods or services, except against anyone who has not abandoned their mark and who, before that date, had used it, had filed a US application for it that is pending or registered, or had filed a foreign application giving a right of priority and then timely filed a US application that is pending or registered (15 U.S.C. § 1057(c)). That exception covers your earlier use even if a newer business filed first. In an infringement dispute over a registration that has become incontestable under 15 U.S.C. § 1065, the Lanham Act's prior-use defense applies only if you adopted the name without knowledge of the registrant's prior use and you, or those in privity with you, have used it continuously from a date before the applicable statutory date (the registrant's constructive-use date under 15 U.S.C. § 1057(c); its registration date, if its application was filed before the Trademark Law Revision Act of 1988 took effect; or the date its registered mark was published under 15 U.S.C. § 1062(c)), and only in the area where that continuous prior use is proved (15 U.S.C. § 1115(b)(5)); a registration that has not become incontestable does not preclude you from proving any legal or equitable defense or defect that could have been asserted if the mark had not been registered (15 U.S.C. § 1115(a)). If you can document prior use in commerce that predates their filing date, a petition to cancel based on likelihood of confusion with a mark you previously used in the United States and have not abandoned (15 U.S.C. § 1052(d)) must be filed within five years from the date of registration (15 U.S.C. § 1064(1)). A trademark lawyer evaluates the relative priority dates and advises on the realistic options.

Common-law trademark rights arise from actual commercial use of a name in a specific geographic area. They protect you against confusing uses of the name in that territory but require you to prove the use history each time you enforce them. A registration on the Principal Register is prima facie evidence of your ownership of the mark and your exclusive right to use it in commerce for the registered goods or services (15 U.S.C. § 1057(b)), and its filing date counts as nationwide constructive use, subject to the exceptions in 15 U.S.C. § 1057(c) for earlier users and applicants. Registration also allows recordation with U.S. Customs and Border Protection, which is open only to current registrations not on the Supplemental Register (19 C.F.R. § 133.1(a)); TTAB oppositions and cancellations, by contrast, are open to any person who believes they would be damaged by a registration (15 U.S.C. §§ 1063, 1064).

Yes. A use-based application states the date you first used the mark anywhere and the date you first used it in commerce, separately from the filing date (37 C.F.R. § 2.34(a)(1)). If you have been using the name commercially for three years, the application can state a first-use date from three years ago, which is earlier than the filing date. If the mark registers, the registration's nationwide constructive-use priority still runs from the filing date (15 U.S.C. § 1057(c)). We recommend keeping business records such as invoices, receipts, and dated marketing materials, because in a TTAB proceeding a date of use alleged in an application must be established by competent evidence (37 C.F.R. § 2.122(b)(2)).

A local-only service business with no plans to expand and no online commerce may not need a federal trademark immediately. Two situations change that: if the business name is distinctive and worth protecting, filing early locks in the priority date at the lowest cost; and if the business has any online presence that could reach customers outside its immediate area, it is not strictly local from a trademark perspective. A trademark lawyer can assess whether your specific business situation warrants filing now or whether other priorities come first.

Use in commerce means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark; commerce means all commerce that Congress may lawfully regulate. For goods, the mark must be placed on the goods, their containers or associated displays, or their tags or labels (or, if that is impracticable, on documents associated with the goods or their sale), and the goods must be sold or transported in commerce. For services, the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in commerce, or rendered in more than one state or in the United States and a foreign country by a person engaged in commerce in connection with them (15 U.S.C. § 1127). The date your use first met these conditions is the first-use-in-commerce date for your application.

USPTO base fees for electronic applications under Sections 1 and 44 are US$350 per class. Our legal fee for a professionally drafted and filed single-class application is $2,995 (Brand Locked), plus the USPTO filing fee. Multi-class applications cost more, as each class requires a separate filing fee. Canadian CIPO registration adds to the total for cross-border coverage. I quote a flat fee before any work begins. Additional government fees may apply.